Posted
by
michael
on Thursday August 14, 2003 @01:40PM
from the look-at-the-silly-monkey dept.

chrullrich writes "According to heise (German, fishbait), SCO's chief counsel Mark Heise (unrelated) of Boies, Schiller and Flexner has declared that the GPL violates the US copyright law and is thus null and void. SCO's legal position is actually a little too crazy to believe: The GPL allows unlimited copies, the copyright law allows one. Therefore, the GPL is invalid. Apparently, they try to argue that the copyright law, in giving consumers the right to make one backup of their software without any permission from the copyright holder, outlaws any contractual agreement that allows users to make more than one copy." There's an Inquirer article in English. Apparently SCO is now using the Chewbacca Defense. Other SCO news: SCO reports a profit, examining SCO's contributions to Linux, an attorney summarizes the case.

Copyleft is a general method for making a program free software and requiring all modified and extended versions of the program to be free software as well. ...
In the GNU project, our aim is to give all users the freedom to redistribute and change GNU software. If middlemen could strip off the freedom, we might have many users, but those users would not have freedom. So instead of putting GNU software in the public domain, we ``copyleft'' it. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.

So why is anyone talking about copyright When the GPL is specifically designed to provide copyleft?:)

Actually SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong. It grants rights (unlimited copying and changes) that are prohibited if the user does not accept the license. Therefore, if someone makes more than one copy, or modifies the source code the defacto accept the license (or they are breaking the law).

What the law establishes is a floor - no license can prohibit the purchaser from making at least one backup/archival copy. Some vendors have tried to get around it by declaring the original media to be that single allowed archival copy, but I doubt that would stand up to a laugh test if it got to court.

It's common practice for lobbyists to try to convert floors into ceilings and vice versa during deliberation. That's why you'll occasionally see a group fight hard for a bill then suddenly oppose it - somebody managed to flip the sense of the bill. But you can't do that after the fact, especially for a product you don't own or produce. It's a silly as, oh, Red Hat claiming that copyright law prohibited any company from purchasing and installing more than a single copy of any Windows product.

If somebody rejects the GPL, they don't have the right to make or distribute ANY copies of the software.

"SCO's reasons for why the GPL is invalid is actually what makes GPL legally strong"

Exactly. I think this is just a floater for Boies, etc., to see how well it will fly. My bet is that the common reaction of "That's insane" will lead them to look for another strategy. Remember, they demanded a trial-by-jury. If they can test drive legal theories in the press, and gauge reaction, then that just works to their advantage.

This is probably (it's untested, hence the "probably") untrue. One of the rights that is reserved for the copyright holders under Title 17 is the right to make derivative works. Modifying code would almost certainly be seen as making a derivative work, at least if the changes are more than an extremely minor patch or something, and hence a violation without the copyright holder's permission.

Forget site licenses. If SCO's logic were true, and it was not possible to grant someone permission to make copies, then you wouldn't be able to authorize a publisher to make copies of your work! So basically if you own a book by an author who retains the copyright to their book, then both you and the publisher are violating copyright law!

No... Wait... That's completely stupid, too. The whole reason we have copyright is so that the author can grant the right to copy to others, and request compensation in return. Unless we required all authors to self-publish, or transfer their copyright. Which I suppose SCO thinks is the case!

So is this Heise a moron, or does he think we all are? Does he actually not realize that copyright law prohibts only unauthorized copies, and that the GPL is a document which grants authorization? Or is he just hoping we won't realize that?

When the FSF refers to the GPL license as being a "copyleft" they're making a joke, because they're using COPYRIGHT law to ensure that the code remains freely available. Copyleft is not a principle the law recognizes.

When the FSF refers to the GPL license as being a "copyleft" they're making a joke, because they're using COPYRIGHT law to ensure that the code remains freely available. Copyleft is not a principle the law recognizes.

Absolutely correct, and that's why invoking preemption isn't so crazy as many seem to think. The federal courts, in Vault Corp. v. Quaid Software [harvard.edu], held that Title 17 Sec. 117 [gpo.gov] of the U.S. Code preempted terms in Vault's shrink-wrap licensing, so there's precedent for applying the preemption doctrine to private contracts in copyright litigation.

Without knowing more about SCO's argument, we certainly can't argue on the merits of it, but there's always the possibility that some enterprising copyright lawyer has found a potential incompatibility between the GPL and copyright law. (Offhand, though, any argument based on Title 17 Sec. 117(a) seems specious to me, since I don't see how it could possibly affect the right to authorize copies and derivative works in Sec. 106 -- but IANA(IP)L.)

because there is legally no such thing as "copyleft" its something that RMS made up to stand for his ideas. Copyright is a a legal term defined by law treaty and convention. Copyleft is a concept that can only exist ontop of copyright.

Now in truth while IANAL, when he wrote the GPL rms did consult with law professors who created a document that should stand up in court.

SCO can say that it not valid, but they are probably wrong.They could say that 2+2 = 5 but they would probably be wrong about that too.

Because copyright law is well known and determined by the Berne convention.

Here are the pertinant facts

You cannot loose your copyright on something that you wrote. It is yours for life unless you assign it to someone

You can ceed it to someone else under a license, but your protection under copyright prevents them from every taking that license off you.

When you work for someone the copyright on the work you produce during the time that they pay you belongs to them, and they can do what they want with it. It is not clear what determines the copyright of items created for a company.

Copyright applies to code, text, music and video.

Copyright has a stronger status than a patent in law because it is easier to prove a violation of it (here is the *copy* that you have made instead of here is the *idea* you used) But items that are copyrighted by someone can be protected by a patent, and licensed items can be protected by patents. This is the killer for Linux and will be how people get it if they every get it, because if someone has a patent on a GPL'ed item they will be able to enforce that patent on derivitive works that are not covered by the GPL and it is argueable that a rewritten class is separated from the initial license because the copyright has now passed to the author of the rewrite (who can grant a license to the copyright, but not to the patent)

A copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work. See 106 of the act. The owner also receives the exclusive right to produce or license derivatives of his or her work. See 201(d) of the act. Limited exceptions to this exclusivity exist for types of "fair use", such as book reviews. See 107 of the act. To be covered by copyright a work must be original and in a concrete "medium of expression." See 102 of the act. Under current law, works are covered whether or not a copyright notice is attached and whether or not the work is registered.Most countries have also accepted the Berne Convention for the protection of literary and artistic works [cornell.edu].

Article 9 specifically states:

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

(3) Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.

Article 12

Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.

Practical examples: The copyright owner can set the price of the object being protected. Many university research projects release their source code on condition that the authors names remain on the files or that a credit is given somewhere within a derivative application.

And people still wonder whether or not UNIX is really dying, when you see companies like SCO fighting tooth and nail, in any way that they can regardless of how despicable and embarrassing it is, to stop Linux. SCO basically gave up the UNIX business because of Linux.

If the GPL is compeletly invalid -- they have a singular problem : Distributing copywrited software without a license. Linus et all can sue for massive damages.

If the GPL is valid, they are in a boatload of shit anyway: How the fuck could they get EXT2 compatability in SCO Unix? They sure the hell didn't clean room it. I wanna see the code to their filesystems. How about the Linux Compatability crap? Clean room? NO FUCKING WAY!

any way you slice it, SCO is gettin' ready to get their butts kicked, but IBM, Redhat SuSE and others.

What do they care about SCO Unix? I doubt they care if they sell another copy. Right now, SCO is a zombie that only exists for two reasons: (1) Sue as many people as possible and hope they win something before they're locked up in prison or the loony-bin. (2) Live-testing designer drugs.

Dude, there are papers published about Ext2fs which describe the data structures in exquisite detail. You don't need to look at the code to write an ext2fs clone. I have written proprietary utilities to access ext2fs data structures. I know what I am talking about.

In addition, there are various commercial tools that read and write ext2, such as [partition-manager.com]Ext2fs Anywhere.

So in that case, you're full of crap. I don't know if I am really qualified to comment on the other case, but doesn't BSD have linux compatibility? And isn't BSD available under a much less restrictive license? They could just adapt that code.

This is not quite so dumb as it sounds, however. (Disclaimer - IANAL, I'm also Canadian) According to US law, there's 2 ways to release your work - with or without copyright. They seem to be arguing that the GPL invalidates itself since it doesn't seek to restrict how the work is distributed, and all GPLed works should therefore be in the public domain (no copyright).

OK, so it's really a bad argument, since the GPL does place restrictions on distrubuton, but it's likely the best of a bad lot.

Unfortunately for SCO, they're about to get on the wrong side of Microsoft too, since MS allows large coprorate customers to make unlimited copies of thier software, but with restrictions. Someone could use the precedent set by this case (should SCO win - HA) to invalidate those licenses as well.

All in all, I'd say RMS was at his insideous best when he crafted the GPL - delcare the GPL invalid, and all other IP licenses are fair game too.

The GPL does NOT make works public domain. If they were public domain I could take any GPL project, compile it, and sell it with a shrinkiwrap license (see: Apple & BSD). The GPL is specifically crafted to PREVENT this from happening by allowing the unlimited sharing of works WITHOUT putting them into the PD and making them succeptible to the BSD situation just mentioned.

Furthermore, if I am the creator of a GPL project there is nothing at all to prevent me from making the code I wrote and making it both GPL and shrinkwrap.

That's the whole point of copyright: you can "give away" your rights for one method of distribution and not lose control of the work. GPL is absolutely, completely and utterly NOT "public domain."

Acutally, I'm kind of hoping that the end result of this is exactly what you're saying: you can either copyright something, or you can release it into the public domain. That you can't release something into the public domain with restrictions, even well meaning ones like community licenses.

So, then, there are two possibilities:

the author has the right to copy his work. NO ONE ELSE DOES. Period.

The author releases it into the public domain, and EVERYONE can copy it.

And (you seem to be suggesting), if the author lets ANYONE make multiple copies, the document automatically goes into the public domain.

So, if you publish a book, you've let the printer make multiple copies and the book's in the public domain. If MS lets some business make multiple copies of Windows, it's in the public domain and we ALL can copy Windows. No author has the right to enter into an agreement to let his friends, associates or family make copies: doing that would eliminate his copyrights.

Wrong.

The problem with your idea is the ``... release something into the public domain with restrictions...'' part. If it's in the public domain, it's not restricted. That's what public domain means. Everyone has the right to use it; no one has the right to restrict another from using it.

If you choose to make a copyrighted work available to others, and extend to them some of the rights which copyright law reserves to you, that's your right, and it doesn't, EVER, put that work into the public domain. That's what the GPL and the BSD licences do: they relax some of the restraints of copyright for those who abide by the licence.

To say that an author can't do that is to restrict his right of contract, and it's pure foolishness to suggest. From reading the babelfished version of the Heise article, I can't really tell what SCO is proposing for a theory, but I can't imagine anything that could ever fly.

We actually had a standing order here NOT to use OSS because of licensing questions, until I got the rule whittled down to exclude BSD, Apache and a few other licenses. The managers here thought that the money spent on exploring the legality of products based on top of GPL'd code was not worth the time they saved developers.

That's exactly why some folks use the GPL. If you want to play with our toys, play our game. If you don't want to play nicely with us, get your own stinking toys. I commend your manager's honesty.

Who said anything about 'donate'? Why would I want to 'donate' code to anyone for any reason? Why on earth would I want to 'donate' my code to you? You're a dick. If I want to GPL something, that's my choice. I don't give up 'ownership' of the code in the way I would if I put it in the public domain.

1) Profits were $3.1 million2) According to a story over at Infoworld [infoworld.com], Microsoft may have paid $6 million for their Unix license.3) Out of $20.1 million in revenues, $7.3 million came from SCOsource, which is the unit driving this whole nonsense.4) And according to SCO itself [yahoo.com], they've spent around $1 million on legal costs so far related to the IBM suit.

Bottom line: SCO's fundamental business is still in a death spiral. Take away the legal fees and the SCOsource revenue, and the rest of the biz lost around $2.2 million, on revenues of $16 million...

They're trying to say that if I create something (it doesn't have to be a software program, call it a book) that I can't allow other people to copy it?

That does appear to be their argument. IANAL, but I cannot imagine that any judge could be convinced that the provision of the copyright law that allows you to make a backup copy, even if you don't have the permission of the copyright owner, somehow constrains the owner from permitting you to make modifications or copies or whatever.

To me, this just makes it abundantly clear -- as if further proof were necessary -- that SCO has no desire for this lawsuit to ever see the inside of a courtroom.

I think SCO is beginning to feel cornered -- not before time. In their earnings webcast today, they presented a "defense" of the stock sales by corporate insiders, which somehow left out how all these pre-planned sales happened (coincidentally, I'm sure) to start right after the lawsuit was announced.

After reading the attorney's article in ZDNet, while I enjoyed it, I have to make a couple comments as he's simply missing the point on one point he made and outright wrong on another point.

First, on point two he states:

2. SCO has a duty to mitigate damages. Any plaintiff complaining that it is being injured by wrongful conduct has a duty to mitigate its damages. In order for SCO to assert claims against Linux users, it has to take reasonable steps to lessen the harm that it is suffering. This means giving Linux users the opportunity to remove the infringing code from Linux. SCO's refusal to identify the Linux code in question is hard to defend. SCO says that it can't do so, because it would be akin to showing a thief his fingerprints so that he can clean them off. But that makes no sense. The "fingerprints" are available in many forms, and can be traced electronically. Keeping the Linux community guessing about the code seems more tailored to running up the damages than preserving evidence.

While it is most assuredly true that parties in a contract have a duty to mitigate their damages, that mitigation duty hasn't been applied as far as I can tell to copyright infringement. And even if it is applied to copyright issues, the duty to mitigate only goes to the question of the amount of damages sustained by the plaintiff, not to if the defendant is infringing.

Second, in point four he stated that:

4. SCO may have set a ceiling on recovery. SCO has already announced a licensing program with specific license rates. In the worst case, and unless and until SCO makes a much clearer and more public case that its code has been stolen, SCO is not likely to recover from individual users more than it has announced its license fees to be. Why pay now when you can pay later or quite possibly not at all?

First, it is clear that SCO is offer a per seat license at 50% and will increase after a certain date (Oct. 15>) Second, statutory damage amounts are provided by law to those who have a registered copyrighted work infringed. This amount is above any "ceiling" that Mr. Carey may mistakenly assert that exists.

Finally, Mr. Carey is right. If SCO's claims are without merit, then they have placed themselves at a huge risk of a substantial judgment against them. Of all our sakes, I hope that this is the case.

that mitigation duty hasn't been applied as far as I can tell to copyright infringement

In at least one case, it has been applied. Someone was denied damages because they didn't mitigate their damages even though it was found that the other work did infringe on theirs.

And the judge in that matter is the same Judge Kimball who is presiding over this case. In the opinion, he said "Had Jacobsen voiced his disapproval in 1996, Hughes would have had the opportunity to take the offending material out of the books".

It's all well and good that you're tired of SCO articles, but this one is *highly* important...Important enough, I think, that the editors could "override" your Caldera selection.

The GPL is being formally challenged in court. I fail to see how that *couldn't* be "News for Nerds" or "Stuff that Matters". This affects *everyone* here, and hundreds of millions of people that don't read/. . The future of Free Software is contingent on the outcome of this allegation.

This interpretation also eviscerates the book publishing industry. After all, how can an author own copyright on a book, and then allow a publisher to go and violate that copyright by tossing off hundreds, thousands, even millions of unwarranted copies? Why has nobody stopped this outrage before?

Because authors and publishers make a contract?

The GPL is, in a sense, also a contract. It says, "We're giving these rights to you. You don't have to agree to our terms, but if you want the rights we give to you, you have to agree to our other terms." The GPL doesn't modify copyright laws, any more than a contract an author makes with a publishing house does.

Copyright law is the basis of the GPL. Copyright law says that the original holder of the copyright has the exclusive right to copy a work. The only way you can copy a work that has Copyright protection is with the permission of the author (or some other cases involving fair use that aren't relevant to this post). Most Copyright business happens as a result of contracts between the Copyright holder and those that make copies. In the book industry, the author sells his right to make copies, in some fashion, to the publisher. The publisher then creates the copies consistant with the contract, sells them and gives the author the amount of money that he or she is due (sometimes this figure is $0). This is no different than the FSF granting permission to copy a work based on a set of terms and conditions. People that publish 'political' or 'religious' works often do similar things. Many pamphlets I see contain words to the effect of "verbatum copies of this may be made without charge or further permission of X, the lawful copyright holder of this work." The GPL is based solidly in contract law, and is very similar to other software licenses in that it grants the ability to copy in a certain way, so long as certain terms are obeyed. The fact that the details of these terms differs is somewhat irrelevant when one is testing the validity of the licenese. To the extent that they are lawful is the only test that matters. And since they are lawful, SCO's claims not-with-standing, the contract is valid.

SCO's claims do merrit some analysis. The core of their complaint, is that federal law precludes copying. However, the copyright law specifically states that the copying cannot happen, absent permission. They seem to have conveniently overlooked the permission part.

Title 17, chapter 1, section 106 states:
the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following:
(1)..to reproduce the copyrighted work in copies...

The other sections of the copyright act just restrict the extent to which restrictions can be made on the restrictions to make copies.
Section 117 is the one that sco is likely relying on. Notice its wording:

(a) Making of Additional Copy or Adaptation by Owner of Copy. -
Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Notice here how the law allows additional rights to copy. It does not say that other types of copying is necessarily prohibited, just that the author cannot prohibit the actions listed. SCO's argument seems to state that it is the other way around: since federal law requires copyright holders to allow these sorts of copies, it only allows these sorts of copies to be made. That's a stretch by my standards.

SCO has announced an agreement with the Business Software Alliance to raid data backup centers. SCO CEO Darl McBride was quoted as saying "These renegade 'backup' centers are no more than a front for illegitimate software duplication. Any customers who are found to have multiple 'backup' copies of any of SCO's intellectual property will be required to pay additional licensing fees, according to the number of processors in the machine that served as the source for these illicit duplicates."

Future targets, according to the press release, may include schools, small businesses, and FTP 'mirrors', which not only house myriad copies of copyrighted works, but also make them available to further illegal duplication by end users.

SCO Claims that copyright law prohibiting multiple backups of information may also cover music, movies, and published works. The RIAA and MPAA were reportedly intrigued, but unavailable for comment.

US Copyright law guarantees the right to make one backup copy. That's fair use. It does not prohibit the copyright owner from allowing more than one copy. That would be absurd and the wording of the law does not resemble that at all. I have no doubt that he knows his own argument to be utterly false, but his job is to try and prove it in court anyway.

You have the right to make one copy, not the limitation to be allowed only one even if your license and contract agree to more than one. The law here allows ONE copy where a contract is silent, it does not command a limitation where a contract speaks of more.

This kind of arguement makes lawyers look bad. If I were IBM I would file for sanctions against this lawyer.

117. Limitations on exclusive rights: Computer programs53
(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Unless I'm reading this wrong this would also invalidate any site license for software, which allow for unlimited copies (albeit with some restrictions), it would also make freeware and pretty much everything else given away illegal. No court is going to buy this argument and deny the right to give things away.
On the other hand, if SCO had sold something that had be GPL'd they might have a case that they had the right to sell it, but I really don't find anyone believing the "Hey You Guys, no giving away things for free" argument.

Parahpased/loosely transcribed events of the SCO financial conference call (I was multitasking on other work). It is biased, but you should get the gist of things.

rah rah rah

go sco

we made money. our market cap went from 10 million to over 140 million making it one of the leaders on the Nasdaq (Go lawsuit go!).

we r the "leader" in the Unix market.

over 100 parties have seen the code

our linux license was based on "demand". LOL. (because people who came and looked at the code inquired as to whether they would offer a license). that's demand?

companieS have been signing up! (no mention of who or how many). I didnt know ONE was plural.

4Q revenue to grow to 22-25 million due to ScamSource licensing

there are two Operating System platforms in the world. Windows and Unix. Microsoft owns Windows, we own Unix. We don't have a VERSION of Unix, we own ALL of it.

we will see this case through to the end despite what our competitors say (red hat: unmentioned by name).

the industry is being divided into two camps: those who respect IP and the those who are trying to destroy it. the "silent majority" is firmly behind SCO.

legal position is ROCK SOLID.

we continue to gain in credibility.

Q&A:Budgeted Legal Expenses?We have spent less than half of what we budgeted so far. Million/quarter range. 600,000-700,000 so far. they include these costs in as "costs of sales".

Guidance on First Linux License you sold?Confidential. sorry, no.

The GPLbuilding your company around a GPL licensed software is like building your HQ on quicksand.Even Linux companies that are pro-Linux are scared that their code "will get sucked into the GPL machine". Pure FUD.

Linux LicenseIf you bought SCO linux, the binary license will be given to you for free.

Our "heritage line of software" wont grow but not because everyone hates us and thinks the product sucks, but because of the global economic slowdown.

Do you have new licensees?Umm, hmmm, hummina, ermmmm, we are projecting we will for next quarter!

More GPLWhen we were more involved in Linux, companies came in and said "how can you get involved with this beast.There is NO WARRANTY in the license. This is problematic.We look forward to going into a courtroom and dealing with these GPL licenses. We are very confident.

Insider TradingWhen their shares vest, it causes the executives a tax event and this is the only way they can pay those taxes.

Darl McBrideMy goal is to get money back on the shares I put into the company in 2000. The strike price on those is 56 dollars a share.

This current ploy by SCO sounds like it doesn't hold any water. On the other hand, there is one part of the GPL [gnu.org] that I am unsure how well would stand up to quick witted lawyerisms in a court of law. The section

You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program

seems too open to interpretation from my layman's perspective. I'm actually quite surprised that no one's ever gone to court over exactly what it means to say their application is based on another application with regards to what the GPL has to say. If a project with 1000 source files, totalling a million lines of code uses some GPL code in one of the routines that performs some utility function, is the application based on the GPL program? According to armchair lawyers on Slashdot the answer is YES, however would a judge and jury see it the same way?

If there is no GPL they are infringing on the authors copyright.They are selling this product.

Infringing copyright for financial gain is a criminal offense. By arguing that SCO does not have a license to distribute Linux definately hurts them.To actually hurt ANY Linux distributer they would have to #1 prove they don't have a license to distribute. #2 be a copyright holder.

This is so obvious to me leads me to think that they really are MS monkeys and this may be the strongest attack they could muster.

How does that work then? According to Heise, federal law only lets people make a single backup copy of software, and that makes the GPL void under US law.

This is a gross misunderstanding of copyright law!!!

Copyright dictates that the copyright holder has final say on who, exactly, will have permission to copy a work. The single backup copy issue is "fair use", and has nothing to do with this.

The GPL works *WITH* copyright by telling recipients that the author has explicitly granted them permission to further distribute their works only so long as they comply with the terms of that license. If they do not wish to comply to those terms, they do not have permission from the author to distribute. End of story.

I've got it figured out. SCO is trying to throw out so many baseless accusitions, and fill the air with so much nonesense, that we simply become numb, unable to deal with it, or respond in a coherent manner.

It's like a two year old that keeps arguing that the sky is, in fact, green, and that he'll never grow up to be a basketball player if you don't let him eat cookies for breakfast. It's cute the first couple of times, then becomes slightly annoying, but eventually you are so baffled by the shear stupidity that you stop tyring to correct him, stop trying to prove your point, and simply say 'yes, dear.'

For the USA Copyright law: here [copyright.gov] See paragraph 106 wich says:Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and toauthorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Why is SCO claiming that the GPL violates copyright law? IBM poignantly noted, a while ago, that SCO distributed any disputed source code under GPL. Hence, according to IBM, the disputed source code is available for any use allowed by GPL. That is a very strong argument by IBM.

To counter this argument, SCO claims that GPL itself is invalid. Hence, even if SCO did previously distribute the disputed source code under GPL, SCO is still entitled to demand royalties because GPL violates the law.

Finally, SCO has a substantive claim. Apparently, the court case will finally come down to one issue: "Is GPL valid and enforceable?" If the answer is "yes", then SCO does not have a case.

Well, in that case, if GPL is invalid, it logically follows that SCO is guilty of copyright infringement. After all, if SCO has sold N copies of their Linux distribution, then SCO must be guilty of N-1 counts of copyright infringement for each and every software application that was included in the distribution under the terms of the GPL.

Obviously this is sheer nonsense. Yes, I'm trying to derive logic from an illogical fallacy. But, it's a slow news day, and I find that trying to make sense of SCO's legal argument is rather a cheap way to amuse oneself and pass some free time.

Certainly, they cannot be serious. That naturally leads to a question how could they possibly even think of coming up with such a big, fat whopper. I mean, you have to be doing some serious drugs in order for such a thought to enter your mind, through nothing but random, natural processes.

I think this is nothing more than a knee-jerk response to IBM's countersuit. SCO's got blindsided when IBM's countersued them for violating the GPL. I'm sure that SCO has planned their legal strategy (or whatever passes for one) in advance, and must've considered all kinds of potential responses from IBM to their original suit. They must've considered many possibilities, but it never considered that IBM would respond by countersuing them for violating the GPL.

Dollars-to-doughnuts SCO didn't even realize that large portions of the Linux kernel, which SCO themselves sold, were copyrighted by IBM, and licensed under the GPL, and IBM is now suing SCO not just for violating the GPL in general (which would be somewhat difficult, since IBM would have no real standing to sue) but IBM is now suing SCO as a copyright owner, and for full-fledged copyright infringement.

This is serious stuff. The GPL itself is not even the primary focus. Just forget about the "controversial" copyleft aspect of the GPL. Pretend for a moment that SCO had some kind of a license from IBM on IBM-copyrighted code, and they distributed the code in violation of the license agreement. Or they had no license at all. And now, IBM is suing them for copyright infringement. That's exactly what's happening here, and GPL just happens to be the terms of the original licensing agreement.

SCO didn't expect it this kind of a response, and got caught, flatfooted. So now they're scrambling to figure out how to respond to charges of full-fledged copyright infringement. I guess they figured that their best chance is to try to declare GPL invalid, and hence the idiocy from their legal beagle. So now, I'm waiting for them to explain exactly what kind of a license would then they believe to have to sell IBM's copyrighted code.

If copyright law forbids a license that allows multiple copies to be made, presumably this means that parts of SCO's agreement with IBM for use of the old Unix code base are invalid.

Come to think of it, SCO's source code agreements with everyone else (including Sun and MS) are probably invalid also. This is hilarious.

I am now waiting for SCO's explanation on how code in Linux can still be a secret in spite of the fact that tens of thousands of people regularly look at it. Next, we can learn how patent law does not permit Novell to retain Unix patents when relinguishing the source code and why SCO really does have the right to keep talking about its right to the 'Unix' IP (when it is supposed to have no such right because it does not even own the Unix trademark).

Any software that doesn't allow one copy also has an invalid license. Ergo by preventing me by license or DRM (digital restrictions managment) from making my one copy, the license is also invalid. Not that I'm rooting for the one copy thing to knock down the GPL, I'm just saying this is a two-edged sword that could also be used against draconian liceneses and DRM measures. Regardless, this bears watching. You can't argue that it works for more than one and than counter that you mean it can work for less than one.

Are you afraid of being remembered as the man who killed open source?
McBride: People ask why we haven't sued Red Hat. We haven't sued Red Hat becase then the GPL grinds to a screeching halt, and all shipping distributions of Linux must stop. This whole process is going to make Linux and open source stronger with respect to intellectual property. Today there is no vetting process to make sure the code that goes into open source is clear. We're trying to work through the issues in such a way that we get justice without putting a hole in the head of the penguin.

So they say they don't want to bring the GPL to a screeching halt, but we can see that a) that was bull and b) that was their intent the whole time--to claim the GPL was invalid. Despite all the nice-talk, that has been their intent all along--to bring the GPL to a screeching halt and to stop mainline distributors in their tracks.

This was in September's Wired, so when did this interview take place to get published? At least a month to two months earlier. These guys have a long and detailed game plan. We may think they are idiots and wrong, but they are by no means "winging it".

I personally think these guys are going to lose, but anyone who thinks they are not skilled and very dangerous lawyers is fooling themselves. Thank goodness IBM (with lots of money and good lawyers) is taking them on and not some ragtag OpenSource or FSF outfit. We'd get crushed.

If the obviously brain damaged shitheads at SCO wants to play like that, fine, let them. It can work to our advantage.

Since SCO claims the GPL is invalid and therefore SCO is not bound by it, then that works both ways. Authors of the software are not bound by it either. Therefore, everyone who has ever written a line of code that is used anywhere in GNU/Linux should now inform SCO that their rights to distribute the author's code has been withdrawn, royalties for any future distribution will be required, and royalties for past distribution are now due...just like SCO is wanting to do to IBM. If they want to play games, then dammit we can play games too. Batter up!

I spent the better part of four years as a lawyer drafting and negotiating software licenses worth millions.

If this is the real position of SCO, that the GPL is invalid because of no restriction on the number of copies... I am utterly speechless. This is the most retarded legal assertion I have ever heard.

In fact, this tidbit coupled with the revelation that it is Sequent's code that is the whole basis of this dispute has completely reduced SCO and its allegations, for me anyway, to utter nonsense without the slightest doubt.

As to Mr. Boies' stellar legal reputation, don't forget that big-name partners very often flash grins and sign up clients without a whole lot of thought about the merits of a case. (Happened quite often in my firm) Very often plebes in the bowels will then do all the shit-disturbing to see if there's really a case for the big-name partner to win.

I think Mr. Boies will enjoy his retainer on this one then wash his hands and move on to his next case. Publicity will only help him. I wonder if it's possible that Mr. Boies took any shares in lieu of payment and has already cashed them in? Our firm also used to do that too!

6. Even if Linux contains SCO code, you might not be infringing. If you run devices with Linux pre-installed, your system might not be using copies of the files that SCO says are infringing. Since nobody knows yet what portions of Linux are alleged to be infringing, it is too early to tell.

Nobody uses every feature in Linux. This seems to imply that a company that uses Linux can reply to SCO's blackmail letter with something like, "We don't use all of Linux, so please tell us what code is infringing so we can tell if we're using it." Since SCO is keeping that a secret, the letter still has not given you the information you need to determine if you're infringing, so you're clear until SCO reveals where the infringement is.

At that point, the infringing code will be written out and the problem goes away.

I always thought of copyright and license to be two seperate things.. I can hold the copyright, but give you a license to distrubute it anyways you feel, thats the jist of GPL..

If they are saying that copyright only allows one copy, then there's many many companies that will have issue with this.. Think of software that allows 5 copies installed... Usually, they are called 5 user, yes you got it, licenses.. Not copyright..

SCO is bleeding money. Darl McBride, a young ambitious twit with no idea how to save the company is preparing for the worst.

Enter Microsoft and their legal department. They "suggest" that SCO make a play for Linux. Of course McBride says "What's in it for me, my stock is in the can, and a lawsuit this big will bankrupt us."

Microsoft's answer (delivered by Ballmer) "Make the play, we'll make sure you and the stockholders get a great deal when we buy you out. In the meantime, it slows the progress of Linux and allows us to test the weaknesses in the GPL (which we hate)".

Darl goes after IBM first because it is following the licencing trail. Next, it goes after users (FUD for Microsoft's cause). Finally, it goes after the GPL. THAT is the real legal test. Even though it looks like a lost cause, SCO doesn't care, the buyout is in place.

When this is all said and done, M$ will buy out SCO (worth $120mill, chump change for M$). Then they will sit around and tell large buyers (i.e goverments and F500s) "SEE all the trouble you can get into with that "free" software? Is it really worth it to you to trust your business to a bunch of immature geeks and their "quaint" licence? This could happen again ANY DAY!!!"

For the cost of lawyers and the $120 million for SCO, M$ gets a great piece of sales FUD to push. They MIGHT get IBM to back off of the Linux train, and they might even cripple Linux for a bit by getting features (NUMA, SMP) removed.

Challenging the GPL is a stupid move, even for SCO. Consider an analogy:
Suppose I make a deal with Microsoft to sell copies of Windows XP. After distributing a few thousand copies, I call up Microsoft to taunt them. "When I signed that contract with you guys, I had my fingers crossed. I never had a valid agreement to copy your software at all. I totally pirated it! Muahahahaha!"
Now, would this really be an intelligent move, or just a way to beg for lawsuits and/or jail time?
Remember, GPL software is still copyrighted, which means distributing it is illegal without permission of the copyright holder(s). All the GPL does is spell out under which circumstances the author is willing to grant you that permission. Take away the GPL and this becomes a plain vanilla case of copyright infringement. By refuting the GPL, SCO essentially admits to being nothing more than an illegal warez operation.

now i'm not a lawyer, don't pretend to be, but it would seem that this argument would also make things like shareware and freeware illegal as well not just open source, right? any software (or song or whatever) where the creator says, "make copies of this for your friends and give them away." would be illegal? so then this interpretation of copyright law has much broader implications than open source.

Preemption of a license agreement is a dead loss argument these days. The Federal Circuit took up that question in a far more important context: enforceability of a no-reverse-engineering provision. Their answer: no preemption.

In theBowers v. Baystate opinion [findlaw.com], the Federal Circuit considered the enforceability under Copyright preemption of a shrink-wrap no-reverse engineering provision. They held that there can be no preemption of a contract, even if it flies squarely into fundamental Copyright Policy like fair use and first sale doctrine. The Section 117 provision argument here is a far, far more attenuated argument.

Though it is pretty clear to me that provisions like the no-reverse-engineering clauses are clearly unconstitutional, I couldn't get the Supreme Court to get excited enough to take up the case in my Amicus brief [ieeeusa.org] on behalf of IEEE policy on no-reverse-engineering clauses [ieeeusa.org]. Maybe next time.

But in the meanwhile, Boies et al. are running squarely into the teeth of the most recent Circuit Court case addressing the point, and it won't be pretty for them.

Here's a good, recent Q&A with RMS that should have been included in the article list... here [ofb.biz].

A pertinent quote:

TRB: Does the fact that, as is often pointed out, the GPL has not yet been tested in court concern you?

RMS: No wise person looks forward to a major battle, even if he expects to win it. Rather than being concerned that we have not yet tested the GPL in court, I'm encouraged by the fact that we have been successful for years in enforcing the GPL without needing to go to court. Many companies have looked at the odds and decided not to gamble on overturning the GPL. That's not the same as proof, but it is reassuring.

About 10,000 Linux advocates laughed themselves to death today, France is now confused about weather to add their share of the dead nerds to the heat death toll. In an official response to the sea SCO's chairman said there will now be weekly wild assertaions until the case is lost... errr he meant won.

SCO has been going on about Linux being in violation of the law, IBM being in violation of the law, Linux users being in violation of the law, and now, incredibly, the GPL being in violation of the law on the grounds that copyright ownership prohibits you from transferring copying privileges, all of which point to the big question that nobody so far has asked:

Isn't having an entire company full of people smoking crack in violation of the law?

The GPL does not have to be recognized by the copyright office in order to be valid.

Copyright dictates that *only* those who have been permission to distribute a copyrighted work may do so (Note, *distribute*, not merely copy.... copyright law is actually quite relaxed on the allowance of copying for purposes of fair use).

The GPL outlines what terms a person must agree to in order to acquire permission from the copyright holder to distribute copies of the works.

Therefore, simple failure to abide by those terms while continuing to distribute such works is plain ordinary copyright infringement.

No, it's not thin, it's transparent. Invisible. Non-existant. A fart in a sewer.

I'm wondering why everyone is posting in a manner that suggests they didn't even understand the argument?

Perhaps because they do understand the argument, and the conclusion it draws is so laughably stupid it's unbelieveable.

What SCO is claiming is that since the JPL is not a recognized framework under the law

Yes, and this is the part that falls under "laughably stupid" - no contract that hasn't been to court is a "recognized framework" - but that doesn't mean that every contract that hasn't been validated by a judge is invalid.

any contradiction between the two should result in what U.S. copyright law saying winning out.

And (again) this is NOT a logical conclusion - people give up their rights in contracts every day. The NDA that SCO wants people to sign to see the alleged infringing code forces people to give up their right to free speech - does this mean that the NDA is unenforcable? Of course not.

They then further say that since U.S. copyright law allows for only one backup copy, any provision stating otherwise in the JPL is null and void under U.S. copyright law.

And this is their second unbelievably bone-headed, colossaly stupid statement.. The US copyright law allows for one backup copy without the permission of the copyright holder (and this is not entirely correct.) Note that key phrase. The GPL is exactly what gives them that permission.

Those two points, when taken together, is their argument. And contrary to what so many seem to be saying, it is a logical conclusion to draw.

It's only logical if you decide to throw away the concept that people are free to enter into contracts as they see fit - which is ludicrous.

It has NO logic behind it. At all.

it does make sense on the surface

If you define "the surface" as "believe everything they say, without applying any kind of logic-check to it at all", then you may be correct. But as soon as you decide to engage your brain, you see that it's totally and completely without merit of any kind.

... will there be a massive shift to BSD-style licenses. I like the BSD license just fine, but I'd be concerned that if the GPL is ruled invalid, that the BSD license wouldn't be valid either.

Good God, don't you people think before you type? Or, more to the point, have those who have moderator priveleges today been passing the crack pipe around a little more frequently than usual?

The argument being used in this incredibly weak attempt to overturn the GPL is that it violates copyright law because the creator of the work is offering terms more liberal than copyright's default restrictions.

Now, for those slow on the uptake, what does a Microsoft site license do? Yup, it grants (in exchange for money) a more liberal right to copy than that otherwise offered by copyright law.

And, for those even slower on the uptake, what does the BSD-style license do? Yup, you guessed it again. It offers a more liberal right to copy than that otherwise offered by copyright law, just like the GPL. The specific restrictions BSD-style licenses impose are different from those of the GPL (and don't think for a minute it doesn't impose restrictions, however benign. If it didn't impose restrictions, the work would be in the public domain. Instead, you are required to maintain the copyright notice... a clear restriction, albeit a benign one), but the net effect is to allow greater lattitude for people to copy the work than the default otherwise permitted under copyright law.

Which part of this progression escapes you? If in some perverse miscarriage of anything remotely resembling rule of law, much less justice, the GPL were to be ruled invalid on this basis, that would spell instant death by precident to not only the GPL, but BSD-Style licenses, Creative Commons style licenses, Artistic Licenses, and, yes, corporate site licenses of the variety Microsoft, Sun Microsystems, and just about every other software company on the planet eagerly offers their customers in exchange for cold, hard cash. For about three minutes, before an appeals court slaps a stay on the judgement, hears the case, and overturns the ruling.

Any other outcome would mean we could say goodbye to the software industry, the online content industry, and probably a whole slew of other industries we're not thinking of as well, upon which copyright law touches in one way or another. Not to mention saying goodbye to 220+ years of precident.

There is absolutely no chance this argument will hold up. It will be interesting to see if any lawyers are disbarred or fined for even bringing this argument to court.

IANAL, but I am a sapient being with a three digit IQ, which is all this level of insight really requires.